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Abortion and the Death Penalty
Why intellectual self-denial isn't the answer.


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Jonah Goldberg

My friend Will Saletan was recently added to the roster of TRB writers for The New Republic, for which both the magazine and Will should be congratulated. However, Saletan’s latest contribution to that venerable space has left me somewhat flummoxed.

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Saletan argues that as conservatives continue to reexamine the efficacy, morality, and utility of the death penalty, they should also reexamine their commitment to banning abortion. Some Catholics and pro-lifers have been arguing that Americans should adopt the “seamless garment” doctrine which respects life from cradle to grave. As Andrew Sullivan has put it, “Life is life is life. From conception to natural death, our first duty is to defend it.”

Saletan says that logic is “upside down.” Rather than persuade foes of capital punishment to be anti-abortion too, people like Pat Robertson and George Will should be pro-choice.

Yeah, it’s a real head-scratcher.

The reason why, says Saletan, is that just as conservatives are learning that capital punishment is, in the words of George Will, “a government program and will be messed up,” they should also see that regulating — i.e. banning — abortion is a government program that will be messed up. “The administration of capital punishment, like the regulation of abortion, depends upon agents of the state — legislators, judges, pardon boards, governors — to translate morality into law.” He asks, “How confident are you of the state’s ability to comprehend and resolve the morality of each individual case?”

What is strange about Saletan’s argument is how thoroughly he mixes apples and oranges in an attempt to make strawberry jam. First, he concedes that the misgivings of the conservatives are based upon revelations about poor administration, not first principles. George Will and Pat Robertson still favor the death penalty in principle. Yet Saletan somehow thinks that poor administration dismantles first principles on abortion. Why? Why can’t conservatives be in favor of good administration for both?

Saletan contends that the state is so feeble at translating morality into law we should have nothing but skepticism about the state’s ability to decipher “life’s complexity.” He compares a “16-year-old girl knocked up by her abusive boyfriend” to a “career criminal” who’s had a murder rap “[pinned] on him in exchange for time off.” Each case is just too complex for some judge to decide.

But wait a second. Isn’t the issue here innocence? If Saletan means by “pinned,” “framed,” then this is a no-brainer. If the guy has been framed, he shouldn’t be killed. And, as I understand the pro-life argument, the unborn are human beings and therefore the unborn shouldn’t be killed because they are surely innocent. This may be terrible news for the 16-year-old, but for pro-lifers, that does not change that verdict.

The death-penalty re-thinkers were never in doubt that innocent people shouldn’t be put to death. Their re-thinking derives from the fact the state has been fouling up at assuring that innocent people aren’t being killed. I doubt pro-lifers will ever be shaken in their faith that the unborn are innocent.

But all of this talk about complexity is very exciting, and not just because it is another bit of evidence that Michael Oakeshott is becoming the preeminent thinker of 21st-century liberalism. Staying with the death penalty for a moment, I am bewildered by the idea asserted both by Saletan in TNR and by Carl Cannon in the current National Review, that because in some cases certainty is elusive, we must operate as if it is elusive in all cases.

Surely, if O.J. Simpson had leapt to his feet, Hertz-dashed for Judge Ito and strangled him to death on national television, we would know that he was guilty of murder. Right? Moreover, if we read that yellow pad of his and it said over and over again, “I will kill Ito,” we would be pretty sure it was premeditated too. Now, why should our level of doubt about some other guy preclude us from frying O.J.? We know O.J. did it.

By the way, I am strongly in favor of genetic testing. Why not? Being sure we got the right guy was always the point, wasn’t it? (For a great primer, see Ronald Bailey’s “Unlocking the Cells” in Reason. The objection to all of the lengthy appeals wasn’t that they might get an innocent guy off the hook, but that they were prolonging justice at great cost. If genetic testing can cut through the bull and deliver the goods, great.

Indeed, I’m still trying to figure out why genetic testing isn’t a boon to capital-punishment supporters. Imagine all of the bleating we’d be spared if we had a genetic test confirming Mumia’s guilt (and he is so, so guilty).

I’m all in favor of skepticism about government; as a conservative, I bask in it. But even I don’t go as far as my friend Will. His argument is essentially an argument against law, which is to say an anarchist one; capital punishment isn’t wrong because it takes a human life, but because the law can never be administered flawlessly. But, if it is true, as Saletan suggests, that a “one-size-fits-all policy is too crude for the moral nuances of real life,” where does that end?

After all, life-and-death moral issues are involved in a vast array of social policies the state regulates, not just abortion and capital punishment. If we can’t possibly come to a conclusion in such seemingly cut-and-dried areas as those, how can we ever come to a conclusion about experimental drug treatments, consumer-health regulations, war, etc. Cost-benefit analyses and risk-assessment economics are very good at predicting how many people will die from government decisions. We know that a lot more people getting driver’s licenses this year will die than people on death row, and the drivers as a group are surely more innocent than the criminals.

Should we be abolishing the death penalty or the right to drive? Indeed, the Left should give up its campaign to “get the guns;” it’s impossible to decide who should have one and who shouldn’t. Life’s just too complex.

Ultimately, the problem with Saletan’s position isn’t that it is anarchist but that it’s too political. It assumes that consensus on any moral question is better than disputation. This isn’t about “saving lives” or “fighting for women’s freedom,” he writes, it’s “about the limits of our ability to apply rigid principles. It’s about humility.” As some might guess from my phrasing in this article, I am not a spokesperson for the pro-life cause. Still, it seems to me, the argument that abortion is like slavery is not easily dismissed. And if one were to apply his rationale to slavery I think it would result in something fairly objectionable, to Saletan and to most other people.



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